Chương XII Bộ luật tố tụng dân sự 2015: Khởi kiện và thụ lý vụ án

Chapter XII

INSTITUTION AND ACCEPTANCE OF CASES

Article 186. Right to institute cases

Agencies, organizations and individuals are entitled to institute cases by themselves or through their lawful representatives (hereinafter referred to as the litigators) at competent Courts to request the protection of their legitimate rights and interests.

Article 187. Right to institute civil lawsuits to protect legitimate rights and interests of other persons, public interests and/or the State's interests

1. Family affair authorities, children affair authorities and Vietnam Women's Union, within their tasks and power, may initiate lawsuits pertaining to marriage and family as prescribed in Law on marriage and family.

2. Employee collective’s representative organizations shall have the right to institute labor cases where it is necessary to protect the legitimate rights and interests of the employee collective or where authorized by the employees as prescribed by law.

3. Social organizations protecting interests of consumers shall have the right to represent consumers to institute lawsuits to protect interests of consumers or institute lawsuits themselves for public interests according to provisions of the Law on protection of consumers’ interests.

4. Agencies and organizations shall, within the scope of their respective tasks and powers, have the right to institute civil lawsuits to request Courts to protect the public interests and/or the State’s interests in the domains under their respective charge or according to law provisions.

5. Individuals shall have the right to institute lawsuits pertaining to marriage and family to protect legitimate rights and benefits of other people according to regulations on marriage and family.

Article 188. Scope of initiation of lawsuits

1. An agency, organization or individual may initiate a lawsuit against another or many other agencies, organizations and/or individuals regarding one legal relation or many interrelated legal relations for settlement in the same case.

2. Multiple agencies, organizations and/or individuals may initiate a lawsuit against another agency, organization or individual regarding one legal relation or many interrelated legal relations for settlement in the same case.

3. Any agency, organization or individual specified in Article 187 of this Code may initiate a lawsuit against another or many other agencies, organizations or individuals regarding one legal relation or many interrelated legal relations for settlement in the same case.

Article 189. Form and contents of a lawsuit petition

1. Individuals, agencies and organizations initiating lawsuits must prepare their petitions.

2. Individuals shall draw up petitions as follows:

a) Individuals with fully civil procedure act capacity may draw up petitions themselves or request other persons to draw up petitions. Names and residential addresses of such individuals shall be written at the blanks for names and addresses of the litigators; at the end of the petitions, there shall be signatures or fingerprints of such individuals;

b) Regarding individuals being minors, legally incapacitated persons, persons with limited cognition or behavior control, their lawful representatives may draw up petitions themselves or request other persons to draw up petitions. Names and residential addresses of such individuals shall be written at blanks for names and addresses of the litigators; at the end of the petitions, there shall be signatures or fingerprints of the lawful representatives;

c) Individuals of cases specified in points a and b of this clause who are illiterate or have visual disabilities or who cannot draw up petitions or append signatures or fingerprints themselves may request other persons to help them draw up the petitions under the witnessing of persons with fully civil procedure capacity. The witnesses must append their signatures on the petitions.

3. If litigators are agencies or organizations, the lawful representatives of such agencies/organizations may draw up themselves or request other persons to draw up petitions. Names and residential addresses of such agencies/organizations and full names and positions of their lawful representatives shall be written at the blanks for names and address of litigators; at the end of the petitions, there shall be signatures and seals of the lawful representatives of such agencies/organizations. If the litigators are enterprises, the use of seals must comply with regulations in the Law on Enterprise.

4. A lawsuit petition must include the following principal contents:

a) Date of its making;

b) Name of the Court receiving the lawsuit petition;

c) Name, place of residence, place of work of the litigator (applicable to litigators being individuals) or head office of the litigator (applicable to litigators being agencies/organizations); phone number, fax and e-mail address (if any).

If the parties reach agreement on an address for the Court to contact, such address shall be specified;

d) Name, place of residence, place of work of person whose interests and duties are protected (applicable to individuals) or head office of person whose interests and duties are protected (applicable to agencies and organizations); phone number, fax and e-mail address (if any);

dd) Name, place of residence, place of work of the defendant (applicable to individuals) or head office of the defendant (applicable to agencies/organizations); phone number, fax and e-mail address (if any). If the place of residence, place of work or head office of the defendant is indefinite, the last place of residence, place of work or head office of the defendant shall be specified;

e) Name, place of residence, place of work of person with relevant interests and duties (applicable to individuals) or head office of person with relevant interests and duties (applicable to agencies and organizations); phone number, fax and e-mail address (if any).

If the place of residence, place of work or head office of the person with relevant interests and duties is indefinite, the last place of residence, place of work or head office of the defendant shall be specified;

g) Lawful interests and duties of the litigator that are infringed upon; specific matters of the defendant, person with relevant interests and duties that are applied for resolution by the Court;

h) Names and addresses of witnesses (if any);

i) List of documents and/or evidences accompanied with lawsuit petitions.

5. The petitions must be accompanied with materials and evidences proving that legal rights and interests of litigators are infringed upon. For cases where due to objective reasons, the litigators failed to provide adequately materials and evidences accompanied with the petitions, they must provide current materials and evidences to prove that legal rights and interests of the litigators are infringed upon. Litigators shall supplement materials and evidences at the request of the Courts during the case resolution.

Article 190. Submission of lawsuit petitions to courts

1. Litigators shall submit their lawsuit petitions and the accompanied documents and/or evidences to Courts competent to settle their cases by the following modes:

a) Direct submission at courts;

b) Sending to Courts by post;

c) Sending through e-portal of Courts (if any).

2. Date of initiation of lawsuits is the day on which the Courts receive the petitions submitted by involved parties or the date written on the seals of the post office where the petitions are sent from.

In cases where the date cannot be identified through the seals of the sending post offices, the date of initiation of lawsuit shall be the day on which the involved parties send the petitions from the post offices. Involved parties shall prove the day on which they sent the petitions from the post offices; otherwise, the date of initiation of lawsuit shall be the day on which the Courts receive the petitions delivered by the post offices.

3. If the litigators send the petitions through e-portal, the date of initiation of lawsuit shall be the day on which the petitions are sent.

4. If the cases are transferred to other Courts as prescribed in Article 41 of this Code, the date of initiation of lawsuit shall be the day on which the petitions are sent to the Courts which have accepted the petitions ultra vires and shall be determined according to provisions in clause 2 and 3 of this Article.

5. The Supreme People’s Court shall provide guidance on the implementation of this Article.

Article 191. Procedures for receiving and processing lawsuit petitions

1. Courts, via petition receiving divisions, must receive lawsuit petitions lodged by litigators directly or via post and must record them in the petition registers. If the petitions are sent through the e-portal, the Courts shall make printing copies of the petitions and must record them in the petition registers.

When receiving petitions that are submitted directly, Courts shall immediately issue the receiving slip for the litigators. For petitions sent by post, within 02 working days from the day on which the petitions are received, the Courts shall send the litigators notifications of the receipt of the petitions. If the petitions are sent through the e-portal, the Courts shall immediately notify the litigators of the receipt of the petitions via their e-portal (if any).

2. Within 03 working days from the day on which the petitions are received, the Chief Justices of Courts shall assign one Judge to review the petitions.

3. Within 05 working days from the day on which they are assigned, the Judges shall review the petitions and make one of the following decisions:

a) To request for amendment and/or supplementation of lawsuit petitions;

b) To carry out the acceptance procedures of the cases according to normal procedures or simplified procedures, if the cases are satisfied for resolution according to simplified procedures as prescribed in clause 1 Article 317 of this Code;

c) To transfer the lawsuit petitions to competent Courts and notify the litigators thereof if the cases fall under other courts' jurisdiction;

d) To return the lawsuit petitions to the litigators if such cases do not fall under the court's jurisdiction.

4. Results of petition processing of the Judges prescribed in clause 3 of this Article must be recorded to the petition registers and notified to the litigators via the Courts’ e-portals (if any).

Article 192. Return of lawsuit petitions, consequences of the return of lawsuit petitions

1. The Courts shall return the lawsuit petitions in the following cases:

a) The petitioners have no right to initiate a lawsuit as prescribed in Articles 186 and 187 of this Code or do not have full civil procedure act capacity;

b) Conditions for initiating lawsuits prescribed by law are not fully satisfied.

Cases where conditions for initiating lawsuits are not fully satisfied are cases where there are provisions about conditions for initiating lawsuits but the litigators initiate lawsuits when any of such conditions has not been satisfied;

c) The matters have been resolved by effective judgments or decisions of Courts or legally binding decisions of competent State agencies, except for cases where the Courts reject the applications for divorce, for change in child adoption, change of alimony levels or damage compensation levels, or applications for change of property manager, change of inherited-property manager, change of guardian or cases of the reclaim of leased or lent properties or houses leased, lent or offered for other people's free-of-charge stay, which have not been recognized by Court and eligible for re-initiation of lawsuits as prescribed by law;

d) After the time limit specified in clause 2 Article 195 of this Code, the litigators fail to submit the receipts of Court fee advances to the Courts, except for cases they are exempt or do not have to pay the Court fee advances or there are objective obstacles or force majeure events;

dd) The cases do not fall under the courts' jurisdiction;

e) The litigators fail to amend or supplement the petitions at the request of the Judges as prescribed in clause 2 Article 193 of this Code.

If in the petitions, the litigators have written sufficiently and accurately the residential addresses of the defendants and/or the persons with relevant interests and duties but such persons change their residences regularly without notification to compentent agencies/persons according to law regulations on residence to evade obligations towards the litigators, the Judges shall not return the lawsuit petitions but regard the defendants/persons with related interests and duties as purposely concealing their addresseses and accept the petition and conduct settlement according to general procedures.

If in the petitions, the litigators failed to declare sufficiently or accurately names and addresses of defendants and/or persons with relevant interests and duties and fail to make amendment/supplement according to the requests of the Judges, the Judges shall return the petitions to the litigators;

g) The litigators withdraw the petitions.

2. When returning the petitions and the enclosed materials and evidences to the litigators, the Judges shall make writings containing reasons for the return of the petitions and send them to the litigators and the procuracies of the same levels. Petitions and materials and evidences that the Judges return to the litigators must be photocopied and retained at the Court to serve as the basis for settlement of the complaints/recommendations on request.

3. Involved parties may re-submit the petitions in the following cases:

a) The litigators have fully had civil procedure act capacity;

b) The petitions for divorces, for change in child adoption, change of alimony levels or damage compensation levels, or petitions for change of property manager, change of inherited-property manager, change of guardian or cases of the reclaim of leased or lent properties or houses leased, lent or offered for other people's free-of-charge stay have not been recognized by Court and are eligible for re-initiation of lawsuits as prescribed by law;

c) Requirements for initiating lawsuits have been fully satisfied;

d) Other cases prescribed by law.

4. The Supreme People’s Court shall provide guidance on the implementation of clauses 1 and 3 of this Article.

Article 193. Request for amendment and/or supplementation of lawsuit petitions

1. In cases where a lawsuit petition does not fully contain the details prescribed in Clause 4, Article 189 of this Code, the Court shall make written notification of such to the litigator for amendment and/or supplementation within a time limit set by the Judge, which, however, must not exceed 01 month; for special cases, the Judge may extend that time limit but for not more than 15 days. The written notification shall be sent directly, online or by post to the litigator and must be recorded to the petition register for supervision. Duration of amendment/supplement shall not be included in the statute of limitations of lawsuit initiation.

2. In cases where the litigators have amended and/or supplemented their lawsuit petitions strictly according to the provisions of Clause 4, Article 189 of this Code, the Courts shall continue processing the cases; if they fail to amend and/or supplement their lawsuit petitions as requested, the Judges shall return the petitions as well as materials and evidences to the litigators.

Article 194. Complaints, recommendations about the return of lawsuit petitions and settlement thereof

1. Within 10 days from the day on which the returned petitions are received, the litigators may file their complaints, or the procuracies may file recommendations to the Courts which have returned the lawsuit petitions.

2. Immediately after the complaints, recommendations about the return of lawsuit petitions are received, the Chief Justices of the Courts shall assign other Judges to review and settle such complaints/recommendations.

3. Within 05 working days from the day on which they are assigned, the Judges shall hold meeting to review and settle the complaints/recommendations. Such meeting must be under the attendance of representatives of procuracies of the same levels and involved parties filing the complaints; if the involved parties are absent, the sessions shall be carried out under the direction of the Judges.

4. Pursuant to materials and evidences related to the return of lawsuit petitions, opinions of representatives of procuracies and involved parties filing complaints at the meetings, the Judge shall make one of the following decisions:

a) To remain the return of lawsuit petitions and notify the involved parties and procuracies of the same level;

b) To receive back the lawsuit petitions and accompanied materials as well as evidences in order to process the cases.

5. Within 10 days from the day on which the decisions responding the complaints/recommendations are received, the litigators may file their complaints, or the procuracies may file recommendations to the Chief Justices of the directly superior Courts for consideration and settlement.

6. Within 10 days from the day on which the complaints/recommendations pertaining to the return of the lawsuit petitions are received, the Chief Justices of the directly superior Courts must make one of the following decisions:

a) To uphold the return of the lawsuit petitions;

b) To request the first-instance Courts to receive back the lawsuit petitions and accompanied materials as well as evidences in order to process the cases.

The decisions on settlement of complaints/recommendations of the Chief Justices of the Courts of the directly superior shall be immediately effective and shall be sent to the litigators, procuracies of the same level, the procuracies filing the recommendation and the Courts having issued the decisions on return of the petitions.

7. If there are grounds to determine that the decisions of Chief Justice of the immediate superior Court prescribed in clause 6 of this Article are contrary to the law, then within 10 days from the day on which the decisions are received, the involved parties may file complaints or the procuracies may file recommendations to the Chief Justices of the Collegial People’s Courts (applicable to cases where the decisions subject to complaint/recommendation are issued by the People’s Courts of provinces) or to the Chief Justice of the Supreme People’s Court (applicable to cases where the decisions subject to complaint/recommendation are issued by Collegial People’s Courts)

Within 10 days as from the day on which the complaints of the involved parties or the recommendations of the procuracies are received, the Chief Justices must consider and settle them. Decision of the Chief Justices shall be the final one.

Article 195. Accepting cases

1. After receiving lawsuit petitions and accompanied materials and/or evidences, if deeming that the cases fall within the courts’ jurisdiction, the Judges shall immediately notify the litigators thereof so that they may come to Courts for carrying out procedures to advance the Court fees in cases where they are liable thereto.

2. The Judges shall estimate the Court fee advance amounts, write them down on the notices and hand them to the litigators for payment of Court fee advances. Within 07 days as from the day on which the courts' notices on payment of Court fee advances are received, the litigators must pay such advances and submit the receipts for payment of Court fee advances.

3. The Judges shall accept the petitions when the litigators have submitted to the Courts the Court fee advance payment receipts.

4. In cases where the litigators are exempt from, or not required to pay, Court fee advances, the Judges must accept the petitions upon receiving the lawsuit petitions and accompanied materials and/or evidences.

Article 196. Notice on acceptance of cases

1. Within 03 working days from the day on which the cases are accepted, the Judge must send written notices to plaintiffs, defendants, agencies, organizations and individuals with rights and obligations related to the settlement of the cases, to the procuracies of the same level on the Courts’ acceptances of the cases.

Regarding cases initiated by consumers, the Courts shall post publicly at the offices of the Courts information about the acceptance of the cases within 03 working days from the day on which the cases are accepted.

2. Such a written notice must contain the following principal details:

a) Date on which the notice is made;

b) Name and address of the Court accepting the case;

c) Name, address; phone number, fax, e-mail address (if any) of the litigator;

d) Specific matters that the litigator for request the Court to resolve;

dd) That whether the case is accepted under normal procedures or simplified procedures;

e) List of materials and evidences submitted together with the lawsuit petition by the litigator;

g) Time limit for the defendant and/ or person with relevant interests and duties to submit to the Court opinions in writing towards the request of the litigator and accompanied materials and evidences, counter-claims, independent claims (if any);

h) Legal consequences of case where the defendant and/or person with relevant interests and duties fail to submit to the Court opinion in writing for the petition for initiating lawsuit.

3. If the plaintiffs file application for the assistance of the Court in the sending of materials and evidences, the notices on the acceptance of the cases that the Courts sent to the defendants and/or persons with relevant interests and duties copies of materials and evidences provided by the plaintiffs.

Article 197. Assigning Judges to settle cases

1. On the basis of the reports on the acceptance of the cases made by the Judges assigned to accept the petitions, the Chief Justices of the Courts shall give decision on assignment of Judges to settle the cases, ensuring the principle of impartiality, objectiveness and contingency.

2. Within 03 working days from the day on which a case is accepted, the court's Chief Justice shall assign a Judge to resolve the case.

For complicated cases and the settlement seemed to be long-lasting, the Chief Justices of the Courts shall assign alternate Judges to ensure the on-schedule settlement as prescribed by the Code.

3. In the course of settling the case, if the assigned Judge cannot continue with the assigned task, the Chief Justice of the Court shall assign another Judge to continue that work; in cases where the trial is being underway without the alternate Judge, the case must be retried from the beginning and the Court must notify the involved parties and the procuracies of the same levels of the retrial.

Article 198. Tasks and powers of Judges when preparing case files

1. Set up the case files as prescribed in Article 204 of this Code.

2. Request the involved parties to submit materials and evidences to courts.

3. Verify the case and collect evidences according to the provisions of Clauses 2 and 3, Article 97 of this Code.

Article 199. Rights and duties of defendants and persons with relevant interests and duties after receiving the notices

1. Within 15 days from the day on which the notices are received, defendants and/or persons with relevant interests and duties must submit to the Court opinions in writing towards the request of the plaintiffs and materials and evidences, counter-claims and independent claims (if any).

Any defendant or person with relevant interests and duties wishing to have such time limit extended must submit to the Court an application for time extension stating the reasons for such extension; if the application is well-grounded, the Court shall grant the extension that must not exceed 15 days.

2. Defendants or persons with relevant interests and duties are entitled to request the Court to allow them to see, take notes or make photocopies of the petitions and materials and evidences enclosed therewith, except for materials and evidences specified in clause 2 Article 109 of this Code.

Article 200. Defendants' right to make counter-claims

1. Together with their obligation to submit to Courts their written opinions on the plaintiffs' claims, the defendants are entitled to file counter-claims against the plaintiffs or persons with relevant interests and duties who have made independent claims.

2. The defendants' counter-claims against the plaintiffs and/or persons with relevant interests and duties shall be accepted in one of the following cases:

a) The counter-claims are made to clear liability against the plaintiffs' claims and/or persons with relevant interests and duties with independent claims;

b) The accepted counter-claims may exclude the partial or full acceptance of the plaintiffs' claims and/or persons with relevant interests and duties who have made independent claims;

c) There is an interrelation between the counter-claim and the claim of the plaintiff/person with relevant interests and duties, and if these claims are settled in the same case, the resolution of such claims in the same case shall be more accurate and quicker.

3. Defendants are entitled to make counter-claims before the opening of the meetings for checking the handover of, access to and disclosure of evidences and mediating.

Article 201. Right of persons with related interests and obligations to make independent claims

1. In cases where the persons with related interests and obligations do not participate in the procedures on the side of the plaintiff or the defendant, they shall be entitled to make independent claims when the following conditions are met:

a) The resolution of the case is related to their interests and obligations;

b) Their independent claims are related to the case being settled;

c) If their independent claims are settled in the same case, the resolution of such case shall be more accurate and quicker.

2. Persons with relevant interests and duties are entitled to make independent claims before the opening of the meeting held for meetings for checking the handover of, access to and disclosure of evidences and mediating.

Article 202. Procedures for making counter-claims or independent claims

The procedures for making counter-claims or independent claims shall comply with this Code’s regulations on procedures for initiating lawsuits by plaintiffs.